Reason in Law: Challenges of Skepticism and Paradox

To what extent, and in what ways, are law and legal process governed or disciplined by reason? This millennial question of legal theory, dating back in the West to at least the time of the Sophists, Plato, Aristotle, and Socrates, continues to be robustly debated around the world today. In America, the question received new vigor in the work of the Legal Realists and their followers (consider Holmes’ influential edict, “the life of the law has not been logic, it has been experience”). The question has also been deeply connected to the very idea of the rule of law, conceived as a “government of laws and not of men.” In this seminar we will consider this question by focusing on two kinds of possible limits on the extent to which law can be governed or disciplined by reason: the possibility of paradoxes in law or legal process, and the possibility of skepticism about law or legal process. We will examine some philosophical paradoxes and consider whether they surface in law. We will also consider some varieties of philosophical skepticism and compare and contrast them to some types of “skepticism” that have been advanced in legal theory (such as “rule skepticism” and “fact skepticism”).

Work for the course consists of one paper, on a topic related to the course topic, and participation in class discussion.

No background in philosophy is required. Some basic tools of logic will be taught to help explain and explore claims about paradox and skepticism in law, but one need have no background in logic – only a willingness to engage in careful reflection and analysis. Anyone seeking information about this course should feel free to contact Professor Scott Brewer at sbrewer@law.harvard.edu.